91 N.Y.S. 849 | N.Y. App. Div. | 1905
The complaint alleges that the plaintiff is a domestic banking corporation, and has been ever since the 1st day of January, 1902; that prior to that time the Bank of Jamaica was a domestic banking corporation, and that on the 1st day of January, 1903, by virtue of certain proceedings duly had and taken by the plaintiff under and in pursuance of the provisions of the Banking Law, the Bank of Jamaica became and was merged in the plaintiff. After alleging that the National Cooperage Company was a foreign corporation, and that William B. Cole and others were copartners, doing business under the firm name of William B. Cole & Co., the complaint avers: “ That on or about the 21st day of November, 1900, the defendant, by a certain agreement in writing, duly executed by him, and bearing date said 21st day of November, 1900, for a good and valuable consideration guaranteed and promised to be answerable to said Bank of Jamaica for the payment of loans which it might thereafter make to said National Cooperage Company to the extent of $10,000, and also for the payment of loans which it might thereafter make to said William B. Cole and Co. to tire extent of $5,000. * * * That the said Bank of Jamaica thereafter, and on the faith of said guaranty, loaned and advanced to said National Cooperage Company and said firm of William B. Cole and Co., at their special instance and request, sums of money amounting to $15,000,
Section 37 of the Banking Law (Laws of 1892, chap.' 689, added by Laws of 1895, chap. 382) reads as follows : “ Effect of Merger.— Upon the merger of any corporation in the manner herein provided all and singular the rights, franchises and interests of the said corporation so merged in and to every species of property, real, personal and mixed, and things in action thereunto belonging shall be deemed to be transferred to and. vested in such corporation into which it has been merged, without any other deed or transfer, and said last named corporation shall hold and enjoy the same and all rights of property, franchises'and interests, in the same manner and to the same extent as if. the said corporation so merged should have continued to retain the title and transact the business of such corporation ; and the title and real estate acquired by the said corporation so merged shall not be deemed to revert by means of such, merger or anything relating thereto.” Section 38 thereof (added by Laws of 1895, chap. 382, and aind. by Laws of 1900,. chap. 199) provides that the fights of creditors and others having relations with a merged corporation shall not be impaired by any such merger.
We are inclined to concur in the view expressed by the learned Special Term, in overruling, this demurrer, upon the effect of the merger of the Bank, of Jamaica with the plaintiff upon the obligation- and guaranty of the defendant. The court said: '“ Dealing with the original banking corporation, the defendant, subjected him*
So far as the relations of this defendant with the plaintiff are concerned in this transaction, they are by virtue of the statute the same as though for the purpose of determining the obligations of the defendant upon his guaranty, the Bank of Jamaica had existed a separate and distinct corporation, managed and operated by the officers and directors of the plaintiff. Such was clearly the intention of the Legislature in the enactments in relation to mergers, even though the language of section 37 of the Banking Law may, as the appellant here claims,' be insufficient to vest title in the cause of action sued upon, by assignment, by reason of some subtle intricacies of the law of assignment,
In respect to the other question discussed by the appellant, namely, that the alleged cause, of action set forth in the complaint is the making and non-payment of loans at variance with the terms of the
The judgment should be reversed and the demurrer sustained.
Hirschberg, P. J., Bartlett and Jerks, JJ., concurred.
Interlocutory judgment reversed,, with costs, and demurrer to complaint sustained, with costs, but with leave to the plaintiff to plead anew upon payment of costs within twenty days.